FILED

United States Court of Appeals

Tenth Circuit

UNITED STATES COURT OF APPEALS June 28, 2013

TENTH CIRCUIT

Elisabeth A. Shumaker
Clerk of Court

EMMANUEL BAXTER,
Petitioner - Appellant,
No. 12-5187
(D.C. No. 4:09-CV-00431-TCK-TLW)
(N.D. Okla.)

v.
JUSTIN JONES, Director,
Respondent - Appellee.

ORDER DENYING CERTIFICATE

OF APPEALABILITY

Before LUCERO, McKAY, and MURPHY, Circuit Judges.

This matter is before the court on Emmanuel Baxters pro se request for a
certificate of appealability (COA). Baxter seeks a COA so he can appeal the
district courts denial of his 28 U.S.C. 2254 petition. 28 U.S.C.
2253(c)(1)(A). Because Baxter has not made a substantial showing of the
denial of a constitutional right, id. 2253(c)(2), this court denies his request for
a COA and dismisses this appeal.
A jury convicted Baxter in Oklahoma state court on a charge of Shooting
with Intent to Kill. The jury further concluded Baxter had committed the crime
after previously being convicted of two or more felonies. Pursuant to the jurys

recommendation, the state trial court sentenced Baxter to life imprisonment.

Baxters conviction was affirmed on direct appeal to the Oklahoma Court of
Criminal Appeals (OCCA). Baxter v. State, No. F-2006-686, slip. op. at 3
(Okla. Crim. App. Jan. 9, 2008). The OCCA affirmed the denial of Baxters state
petition for post-conviction relief. Baxter v. State, No. PC-2008-677, slip. op. at
3 (Okla. Crim. App. Oct. 22, 2008). Baxter then filed the instant 2254 petition
in federal district court, raising six grounds for relief. In a comprehensive order,
the district court analyzed each claim set out in Baxters 2254 petition and
concluded Baxter was not entitled to habeas relief.
The granting of a COA is a jurisdictional prerequisite to Baxters appeal
from the dismissal of his 2254 petition. Miller-El v. Cockrell, 537 U.S. 322,
336 (2003). To be entitled to a COA, he must make a substantial showing of the
denial of a constitutional right. 28 U.S.C. 2253(c)(2). To make the requisite
showing, Baxter must demonstrate reasonable jurists could debate whether (or,
for that matter, agree that) the petition should have been resolved in a different
manner or that the issues presented were adequate to deserve encouragement to
proceed further. Miller-El, 537 U.S. at 336 (quotations omitted). In evaluating
whether he has satisfied his burden, this court undertakes a preliminary, though
not definitive, consideration of the [legal] framework applicable to each of his
claims. Id. at 338. Although Baxter need not demonstrate his appeal will succeed

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to be entitled to a COA, he must prove something more than the absence of

frivolity or the existence of mere good faith. Id.
Having undertaken a review of Baxters appellate filings, the district
courts comprehensive order, and the entire record before this court, we conclude
Baxter is not entitled to a COA. In so concluding, this court has nothing to add to
the district courts comprehensive order. Accordingly, this court DENIES
Baxters request for a COA and DISMISSES this appeal.
ENTERED FOR THE COURT

Michael R. Murphy
Circuit Judge

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